Seattle-First Nat. Bank v. N.L.R.B.
| Citation | 651 F.2d 1272 |
| Decision Date | 25 November 1980 |
| Docket Number | SEATTLE-FIRST,No. 79-7387,79-7387 |
| Parties | 105 L.R.R.M. (BNA) 3411, 90 Lab.Cas. P 12,406 NATIONAL BANK, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Parry Grover, Anchorage, Alaska, Mark A. Hutcheson, Seattle, Wash., argued for petitioner; Davis, Wright, Todd, Riese & Jones, Anchorage, Alaska, on brief.
Marjorie Gofreed, Washington, D.C., for respondent.
Petition for Review of a Decision of the National Labor Relations Board.
Before SNEED and FLETCHER, Circuit Judges, and JAMESON *, District Judge.
The issue in this case is whether a union may station picketers in a foyer in front of the entrance to a restaurant located on the 46th floor of an office building. We conclude, as did the National Labor Relations Board, that the union should be permitted to picket on the 46th floor. 1 But we also conclude that the Board's order did not adequately protect the petitioner's property rights, and we therefore decline to enforce the Board's present order and remand the case to the Board to revise its order.
Seattle-First National Bank owns a 50-story office building in Seattle. It occupies about one-third of the building, the remainder of which is leased, primarily to professional, corporate, and commercial tenants. The Mirabeau Restaurant leases space on the 46th floor of the building. A stock brokerage firm also leases space on the 46th floor, and persons going to the 47th floor of the building must change elevators on the 46th floor. On July 14, 1978, after the expiration of a contract and a discontinuance of negotiations between the restaurant and the Hotel, Motel, Restaurant Employees and Bartenders Union, Local 8, AFL-CIO, the union struck in support of its contract demands. Picketers patrolled the entrances to the building, carrying placards, distributing leaflets, and talking to persons willing to listen. The union also assigned one or two persons to the foyer of the 46th floor of the building. These persons did not carry placards, but sometimes held leaflets in front of them like placards, in effect forcing restaurant customers and nonstriking employees to cross a picket line. They distributed leaflets and talked to potential customers of the restaurant. Until August 25, 1978, some of the persons stationed on the 46th floor were employees of the restaurant. Since that date none of the persons stationed there by the union have been restaurant employees.
The petitioner, 2 which controls the 46th floor foyer, demanded that the picketers stationed on the 46th floor leave on July 14, 1978, the first day of the strike. The petitioner threatened to have them arrested for trespassing. When these persons refused to leave, the petitioner sought an injunction in state court barring them from the 46th floor foyer. The state court stayed its proceedings, finding that it was preempted, after the union filed a charge with the National Labor Relations Board. 3 The complaint The Board's regional counsel filed a charge against petitioner, the parties agreed on stipulated facts, and they waived a hearing before an administrative law judge. A three-member panel of the Board considered the case. It concluded that the petitioner had committed an unfair labor practice. 243 N.L.R.B. No. 145, 7 (August 1, 1979). The panel ordered the petitioner to cease interference with the union's protected economic strike activities and to post a notice in the 46th floor foyer stating that it will not interfere with those activities. 5 The petitioner filed for review of the panel's order and the Board filed for enforcement of the order. This court has jurisdiction under 29 U.S.C. § 160(e) and (f) (1976).
alleged that the petitioner committed an unfair labor practice under § 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1) (1976), 4 by threatening to have the picketers in the 46th floor foyer arrested.
The bedrock on which our decision in this case rests is Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976). There striking warehouse employees of a shoe company picketed in front of one of the employer's retail stores. The store was located in a shopping center mall that housed sixty retail stores and was surrounded by a large parking lot. Four picketers carrying placards patrolled the area in the interior of the shopping center mall adjacent to the entrance to the shoe store. The owner of the shopping center threatened to have the picketers arrested for trespassing if they did not leave, so the picketers left and subsequently filed unfair labor practice charges.
The Court in Hudgens made clear that Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972), had overruled Food Employees v. Logan Valley Plaza, 391 U.S. 308, 88 S.Ct. 1601, 20 L.Ed.2d 603 (1968). 424 U.S. at 518, 96 S.Ct. at 1035. It follows that the proper resolution of this case depends on an analysis of the National Labor Relations Act, not the application of first amendment authorities. Section 7 of the Act 6 guarantees employees the right to engage in concerted activities in support of collective bargaining, including The Board's accommodation on remand is particularly relevant to this case. It found that the owner of the shopping center violated section 8(a)(1) by threatening to have the picketers arrested unless they stopped picketing on the mall. Scott Hudgens, 230 N.L.R.B. 414 (1977). Crucial to the Board's decision was its finding that the picketers could not identify potential customers of the shoe store when they entered the mall, but only when they entered the store. Id. at 416. Indeed, shoppers buying on impulse might not know that they were potential customers of the shoe store when they entered the mall. Id. at 417. Since a contrary holding would have insulated store owners in malls from the effects of picketing, a union's most effective weapon in a strike, the Board concluded that shopping center owners' property rights must yield to the picketers' section 7 rights.
striking and picketing. See, e. g., United Steelworkers v. NLRB, 376 U.S. 492, 499, 84 S.Ct. 899, 904, 11 L.Ed.2d 863 (1964). Here, as in Hudgens, the section 7 rights of employees conflict with the private property rights of a building owner. The standard to be used in adjusting this conflict appears in NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112, 76 S.Ct. 679, 684, 100 L.Ed. 975 (1956). There it was held that conflicts between section 7 rights and private property rights must be resolved "with as little destruction of one as is consistent with the maintenance of the other." Id. Hudgens twice quoted this passage with approval. 424 U.S. at 521, 522, 96 S.Ct. at 1037, 1038. It was also quoted in Central Hardware Co. v. NLRB, 407 U.S. 539, 544, 92 S.Ct. 2238, 2241, 33 L.Ed.2d 122 (1972). The Court in Hudgens remanded the case to the Board to allow it to have the first opportunity to accommodate section 7 rights with private property rights. 424 U.S. at 523, 96 S.Ct. at 1038.
The Board distinguished Babcock & Wilcox and Central Hardware because the unions could identify the targets of their activities in those cases without entering the employers' property. Id. at 416. Those cases involved organizational campaigns rather than strikes. The unions seeking to organize the employees could identify them and reach them by telephone or at home with much less difficulty than the union in Hudgens could identify and reach the shoe store's customers. Reaching potential customers of the shoe store through advertising would have been expensive. Inasmuch as there were sixty stores in the shopping center, picketing at the entrances to the shopping center would not permit the union to identify and confront potential customers of the shoe store. Picketing on the mall in front of the shoe store was therefore held to be protected activity.
Application of the standard that section 7 rights and private property rights must be accommodated with as little injury to each right as possible requires that we approve the conclusion reached by a three-member panel of the Board in this case that the union should be allowed to station picketers in the 46th floor foyer. The presence of a limited number of picketers in the foyer conducting themselves in a manner that does not impede the use of those facilities on that floor not associated with the restaurant would not substantially injure the petitioner's property rights. A burden of this magnitude is justified because the petitioner has sanctioned an invitation to the public to patronize the restaurant.
Barring the picketers from the foyer, on the other hand, would substantially injure the union because stationing picketers outside the building is not an effective substitute for picketing in front of the restaurant. This is especially clear in the case of lunchtime customers of the restaurant. The parties stipulated that a significant portion of the lunchtime clientele works in the building. While these customers may have noticed the picketers when they entered the building, they may have forgotten their message hours later at lunchtime. 7 The situation is different with respect to dinnertime clientele, an insignificant portion of which works in the building. Most of this group would see picketers outside the building immediately before dining.
In the final analysis, our approval of the Board's conclusion that pickets should be allowed on the 46th floor rests on the peculiar nature of picketing. Even if the union can adequately inform most of the restaurant's customers of the existence of the strike without stationing picketers on the 46th floor, the union cannot fully implement its section 7 rights without confronting the customers in front of the restaurant. Picketing is more than...
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...180, 98 S.Ct. 1745, 56 L.Ed.2d 209 (1978); Hudgens v. NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976); Seattle-First Nat'l Bank v. NLRB, 651 F.2d 1272 (9th Cir.1980). 8 The Garmon court expressed this concept as "When it is clear or may fairly be assumed that the activities which a......
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...NLRB, 424 U.S. 507, 96 S.Ct. 1029, 47 L.Ed.2d 196 (1976), picketing occurred inside a large shopping mall. In Seattle-First National Bank v. NLRB, 651 F.2d 1272 (9th Cir. 1980), the picketing site was an area outside the entrance to a large restaurant located on the forty-sixth floor of an ......
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